Cent. Of Ga. Ry. Co v. Harden

• Decision Date: 14 May 1901
• Citation: 113 Ga. 453,38 S.E. 949
• Parties: CENTRAL OF GEORGIA RY. CO. v. HARDEN.
• Court: Georgia Supreme Court

38 S.E. 949

113 Ga. 453

CENTRAL OF GEORGIA RY. CO.

v.HARDEN.

Supreme Court of Georgia.

May 14, 1901.

APPEAL—REFUSAL OF NEW TRIAL—REVIEW.

The order overruling the motion for a new trial fails to show that the verdict sought to be set aside was approved by the trial judge in the exercise of a sound legal discretion, but clearly, by the terms therein employed, it indicates the contrary. In the absence of such approval, the verdict cannot, under the evidence, be sustained.

(Syllabus by the Court.)

Error from city court of Forsyth; W. M. Clark, Judge.

Action by J. H. Harden against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Hall & Boynton and R. L. Berner, for plaintiff in error.

Stone & Williamson, for defendant in error.

LITTLE, J. A number of grounds are set out in the motion for a new trial. In addition to those that the verdict is contrary to law, and without evidence to support it, several assignments of error are made to the rulings of the judge in admitting evidence, and to several portions of his charge to the jury. These we have carefully considered, and, in our judgment, no error of law was committed. The question whether the verdict is supported by the evidence in the case is one of much more difficulty. In the case of Railway Co. v. Sanders, 111 Ga. 128, 36 S. E. 458, this court took occasion to say that, if there was any one question settlect. by the general law and the interpretation of our statutes, it is that of the liability of a railroad company to respond in damages to the owner for the killing of live stock by the operation and running of its engines and cars; and we now repeat, what was said there, that, when it has been shown that an animal has been injured or killed by the running of a locomotive or train of cars, the law presumes that the company was guilty of negligence in such injury or killing, and, if nothing more appears, the owner, resting on such presumption, is entitled to recover; but that, when this presumption is rebutted by the evidence, and there is no conflict in the evidence, the owner is not entitled to recover. It was clearly shown in this case that a mule belonging to the plaintiff was killed by the running and operation of a locomotive and train of cars belonging to the defendant company. If nothing more appeared, the owner would, under the presumption that such killing was the result of negligence, have been entitled to recover the proven value. But the engineer and fireman were sworn as witnesses in the case, and testified, in effect, that the mule came suddenly on the track in front of the engine, and, despite all the efforts which were made, —and that all possible efforts were made, — the locomotive struck the mule, and it was killed. In reply to this, witnesses were introduced who testified as to tracks running down the road apparently in front of the advancing train. It was, however, not made conclusively to appear that these tracks were made by the mule which was killed, and, even if it could be so determined, the conclusion does not follow that the animal was seen, or could have been seen, by the engineer, while so running. At best, this evidence is exceedingly unsatisfactory in opposition to that of the witnesses who were at the time on the locomotive, and who testified as to the discovery of the presence of the animal on the track in their front. We are not prepared to say that these evidences of tracks were not in some degree in conflict with the evidence of the engineer and fireman; but, if so at all, it was barely such as would authorize a jury to conclude that the animal ran for some distance in front of the approaching train, and that its presence should have been discovered. The jury having returned a verdict for the plaintiff, thetrial judge, in passing on a motion for a new trial, made an order in the following language: "The motion for new trial in the within case is hereby reluctantly overruled. September 1, 1900." We are somewhat at a loss as to the interpretation this judgment should receive, but, after much consideration, have concluded that it cannot be construed as a judicial approval of the verdict which was rendered. The definition of "reluctant" given by Mr. Webster is "striving against; opposed in desire; unwilling; disinclined;" and, by the Standard Dictionary, "disinclined to yield to some demand or requirement; unwilling, " etc. It is but fair to our Brother of the trial bench to say that, in our opinion, the true interpretation of the judgment which he rendered is that, as the jury, who were charged with the determination of the facts, settled then by their verdict, while he could not approve the finding, he allowed it to stand because the jury had so found. It is the settled doctrine of this court that, where a jury has passed upon a case, and there was evidence to support their finding, and that finding has been approved by the trial judge, in the absence of any error of law on the part of the trial judge this court will not set aside a verdict, although satisfied "that the preponderance of the evidence was against the finding made. But the same rule does not apply to the judge of the trial court in passing on a motion for a new trial. This court is one of limited jurisdiction, and its constitutional authority is to correct errors which were committed in those courts from which a writ of error lies; and, in an adherence to the rule above referred to, an important consideration is that the trial judge has approved the verdict which was rendered; and the fact that he has approved it, and that there is some evidence to sustain the finding, renders this court unable to say that, as a matter of law, the verdict was wrong, and that the trial judge erred in overruling the motion to set it aside. As an original proposition, the power given to trial judges to set aside verdicts rendered in their courts makes the exercise of this power a matter of judicial discretion. The primary object of submitting questions of fact to a jury for determination is the ascertainment of the truth as to those facts about which the parties are at issue, and the judges presiding in trial courts have direct supervision of the verdicts rendered therein; and, while we would not for a moment be understood as saying that they should capriciously set aside the findings of fact made by a jury, nor that they ought, without good cause, to set aside the verdict when the evidence is conflicting, we do unhesitatingly say that they should in every instance set aside a verdict and grant a new trial to prevent the working of an injustice, where it is apparent that such would be the result. Mr. Blackstone, in the third book of his Commentaries (page 383) in referring to the origin of the grant of new trials, says: "Very early in the reign of Charles II. new trials were granted upon affidavits, and, the former strictness of the courts of law in respect of new trials having driven many parties into courts of equity to be relieved from oppressive verdicts, they are now more liberal in granting them; the maxim at present adopted being this: that (in all cases of moment) where justice is not done upon one trial, the injured party is entitled to another." In 2 Grah. & W. New Tr. p. 39, the author says: "That the exercise of this power is sometimes absolutely necessary for the purposes of justice, it needs but little argument to demonstrate. If the verdict of a jury be, in all cases, conclusive, there is no remedy for a fraudulent and willful disregard of the evidence; and a trial by jury, instead of being the safest and most expeditious mode of determining questions of fact, would soon lose that place in the public confidence to which...